Aguilar v. Johnson

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 97-41479

(Summary Calendar) _________________

TIMOTHY A AGUILAR,

Plaintiff - Appellant,

versus

GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION, Company Departments; KEITH J PRICE, Warden, Coffield Unit; KENNETH THOMPSON, Coffield Unit; BERNIE L BUSH, Coffield Unit; BRENTON W CHADWICK, Coffield Unit; DONALD CHASTAIN, Coffield Unit; RONALD HARSHE, Coffield Unit; WILLIAM MEIR, Gang Intelligence; UNIDENTIFIED KELLY, Officer, Coffield Unit; OMALIE SIMMONS, Inmate Records; UNIDENTIFIED WATSON, Officer, Coffield Unit; TEXAS BOARD OF PARDONS & PAROLE,

Defendants - Appellees.

Appeal from the United States District Court For the Eastern District of Texas (6:97-CV-188)

July 24, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:*

Timothy A. Aguilar, Texas prisoner # 647166, appeals the 28

U.S.C. § 1915(e)(2) dismissal of his pro se, in forma pauperis 42

U.S.C. § 1983 civil rights action as frivolous.

Aguilar first contends that the magistrate judge erred in

determining that he had already raised, in a previous civil rights

action, his claim that defendant Chastain entered his cell and

confiscated legal materials on April 19, 1995, thereby violating

his constitutional right of access to the courts. The magistrate

judge dismissed this claim on the basis that it was barred as

repetitive of claims raised in a state court lawsuit that had been

affirmed in the defendant’s favor. Contrary to the magistrate

judge’s conclusion, however, Aguilar’s testimony at a hearing held

pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985),

reflects that the claim Aguilar previously raised against Chastain

involved a September 1995 incident))not this April 19, 1995

incident))and, therefore, should not have been barred as

repetitive. Moreover, because Aguilar alleged in his complaint and

at the Spears hearing that he was prejudiced in a state

postconviction action by Chastain’s removal of several affidavits,

the claim against Chastain is not based on an “indisputably

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

-2- meritless legal theory.” McCormick v. Stalder, 105 F.3d 1059, 1061

(5th Cir. 1997); see also McDonald v. Steward, 132 F.3d 225, 230-31

(5th Cir. 1998). We therefore hold that the magistrate judge

abused her discretion in dismissing Aguilar’s claim that Chastain

violated his right of access to the courts in April 1995.

Aguilar next argues that magistrate judge erred in dismissing

as frivolous his claim that on October 4, 1995, the driver of a

prison van allegedly caused him injuries by suddenly and

intentionally braking and his claim that defendants Kelly and

Thompson were deliberately indifferent to his serious medical needs

resulting from the accident. The magistrate judge concluded first

that Aguilar had voluntarily waived both of these claims at his

Spears hearing and then, alternatively, that Aguilar’s pleadings

regarding the deliberate indifference claim showed only “an

isolated incident of non-remarkable proportions” and, therefore,

failed to establish a constitutional violation. Although we find

that Aguilar did, in fact, waive his claim regarding the van

accident during his Spears hearing, we find that Aguilar did not

waive his deliberate indifference claim. Nonetheless, because

Aguilar failed to connect any named defendant to the denial of

medical attention for any serious medical need, see Wesson v.

Oglesby, 910 F.2d 278, 283-84 (5th Cir. 1990), we hold that the

magistrate judge did not abuse her discretion in dismissing the

claim.

-3- Finally, Aguilar contends that the magistrate judge erred in

dismissing his claims that Chastain engaged in a pattern of

retaliation for the lawsuits he filed against Chastain and that the

Texas Board of Pardon and Paroles denied him parole in retaliation

for the lawsuits he has filed against prison officials. Aguilar’s

allegations were insufficient, however, to show that retaliatory

motive was the basis of these defendants’ actions. See Woods v.

Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (requiring that plaintiff

produce direct evidence of retaliatory motivation or allege a

chronology of events from which retaliation may plausibly be

inferred and not rest on conclusory allegations of retaliation).

Thus, the magistrate judge did not abuse her discretion in

concluding that these claims were frivolous.

Aguilar’s remaining claims were either waived at his Spears

hearing or have been abandoned by his failure to brief them on

appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993); FED. R. APP. P. 28(a)(6).

For the foregoing reasons, we VACATE and REMAND for further

proceedings the magistrate judge’s decision with regard to

Aguilar’s April 1995 access to the courts claim and AFFIRM with

regard to all other claims.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

-4-